A recent case from the Third Department, Shea v. Signal Hill Road LLC, involved a dispute about untrimmed trees that blocked the view of the adjoining property owner to Lake Placid and the surrounding mountains. The trial court sided with the adjoining property owner, finding that the restrictive covenant contained in the deeds was enforceable, requiring the trees to be cut back, a ruling that was affirmed by the Third Department. The Third Department’s decision explained the proof required to establish and enforce a restrictive covenant and discussed defenses that may undermine that right, which defenses were found not to apply in this case.

The Restrictive Covenant

The restrictive covenant at issue was contained in the original deeds from the developer of the residential neighborhood, issued around 1950. That covenant provided that the maximum height of trees, shrubs and bushes on the sites could not exceed 15 feet over “the natural grade of the property at the point of planting.” The covenant further provided that the height restriction applied to foliage “now existing or which may be hereafter planted upon the premises.” These deeds also expressly specified that the restrictive covenant “shall run with the land” and that is was being imposed to maintain a “high-class development.” The covenant also expressly provided that the developer “reserves to itself and to its successors, or assigns…the right to waive or alter such…restrictions as it may deem best for the benefit of the whole community in any particular instance.”

The Facts

The Parties’ Chain of Title

The parties obtained their properties through two separate chains of title from the original developer. Defendant Signal Hill Road LLC’s principal, Frederick Brown, purchased his site (Plot No. 23 on the original subdivision map) in 2003. He transferred it into the LLC in 2010 for estate planning purposes. Plaintiffs, the Shea family, purchased their property (Plot No. 18 on the original subdivision map) in 1989. Each of these deeds expressly noted they were subject to the restriction and “to the faithful observance of” the restriction, which “firmly bind and obligate themselves, their distributees and assigns.”

Previous Tree Trimming

Plaintiffs’ property is located uphill and further from the lake than defendant’s property. In 1989, when the Shea family purchased their home, they required the seller to trim the trees on both parcels, to enhance their views of Lake Placid and the surrounding mountains. After defendant purchased his parcel in 2003, he allowed the Shea family periodically to trim the trees on his property. The Shea family would also trim the trees on their own property at the same time. This continued until 2013, when defendant moved to his property full-time, at which time he prohibited the Shea family from trimming the trees on his site and refused to trim those trees himself. The Shea family sued to enforce the restrictive covenant.

The Legal Analysis by the Third Department

In deciding the matter, the Third Department first discussed the proof needed to enforce the restrictive covenant. It noted that in order to establish that the restrictive covenant ran with the land and was binding on defendant, plaintiffs had “to establish by clear and convincing evidence that (1) the grantor and grantee intended the covenant to run with the land, (2) there is privity of estate between the parties to the current dispute, and (3) the covenant touches and concerns the land.”

The Third Department found that the deeds explicitly recited that the restrictive covenant ran with the land, applied to current and future plantings, applied to successors and assigns, and was inserted to preserve the high-class nature of the neighborhood, all of which demonstrated on-going and permanent obligations. This satisfied the first factor.

The Third Department also found that plaintiffs established the second factor, privity of estate, by showing that the properties derived from the same original grantor, (the developer), who imposed the covenant. This “vertical privity” satisfied the second factor.

As to the third factor, the Third Department rejected defendant’s argument that the covenant only imposed a maintenance burden on the trees but did not impose a burden on the actual land. Rather, the appellate court noted that the on-going maintenance obligation impacts the land.

The Third Department also gave short shrift to defendant’s other arguments against enforcement of the covenant. While the Court acknowledged that plaintiffs may have occasionally waived defendant’s maintenance obligation, or that other sites in the development may not have sought to enforce the covenant at all, these facts do not extinguish the Shea family’s right to enforce the covenant. The Court noted that there was no agreement between the parties to extinguish the covenant, and there was no showing that the restriction had no value to the Shea family or had become an onerous burden to defendant. Rather, the evidence showed that the lovely view the Shea family had from their deck had been impeded by defendant’s untrimmed trees and that this lake view had significant value.

The appellate court also rejected defendant’s statute of limitations argument, noting that the limitations period for enforcing this type of restrictive covenant was six years. As plaintiffs commenced the action shortly after defendant refused to allow the trimming in 2013, the action was found to be timely. The Court also rejected the defense of laches, noting that plaintiffs had not delayed and that defendant was neither surprised nor prejudiced by this proceeding.